John Hayes: I beg to move that the clause be read a Second time.
The new clause addresses the issue of the courts’ role in curtailing the use of the Regulation of Investigatory Powers Act 2000 and more especially circumventing the role of the Investigatory Powers Tribunal. It would restore Parliament’s choice in enacting section 67 of the Act so that the decisions of the Investigatory Powers Tribunal would not be subject to judicial review.
As Security Minister at the Home Office, I addressed these matters in an important piece of legislation that established the principle of a double lock in respect of the warranting of powers in the case of both suspected terrorists and serious and organised criminals. That is to say that tech companies are obliged to maintain a record of electronic communications that can be interrogated on application to the Home Secretary for a warrant. I introduced the double lock, so that as well as satisfying the Home Secretary of the validity of the case made by the police or the security services, a warrant must also pass the same test when put before a member of the Investigatory Powers Tribunal or a judge. That was a safeguard to ensure that those powers are used only when necessary and proportionate. It is that test  of necessity and proportionality that lies at the heart of the exercise of powers in respect of security and related matters.
The problem—it is a challenge that we have considered on previous occasions in the scrutiny of the Bill: indeed, it has punctuated our consideration—is that the courts have taken it upon themselves to become involved in matters that should be the exclusive preserve of this House. It is very important to see the Bill in that context. The supremacy of Parliament is fundamental to protecting the interests of the people, and Parliament’s particular role in our constitutional settlement is not a matter—as was suggested by one of those who gave evidence to us—of mutuality.
Anybody who understands constitutional theory and practice will know of the work of Dicey. It is clear that parliamentary sovereignty, as Dicey argued, confers on Parliament a dominant characteristic. Parliament consists of Her Majesty the Queen, the House of Lords and the House of Commons acting together, and therefore:
“The principle of Parliamentary sovereignty means neither more nor less than this”.
In Dicey’s words, Parliament has
“the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament.”
Those are the words of A. V. Dicey in affirming the principle of sovereignty. He goes on to say that parliamentary sovereignty must be thus described:
“Any Act of Parliament, or any part of an Act of Parliament, which makes a new law, or repeals or modifies existing law, will be obeyed by the courts…Some apparent exceptions to this rule no doubt suggest themselves. But these apparent exceptions, as where, for example, the Judges of the High Court of Justice make rules of court repealing Parliamentary enactments, are resolvable into cases in which Parliament either directly or indirectly sanctions subordinate legislation.”
Legally, sovereign power is assuredly maintained by Parliament. It is quite wrong for the courts to be used as a way to perpetuate debate. We heard that from the Minister in particular respect of the way that judicial review has metamorphosised over time to perpetuate debate in particular cases that have been settled previously. The Minister described it as having several bites of the cherry. That is not the role of judicial process, and the Bill goes a considerable way to addressing that, but it does not go far enough.

The purpose of the new clause is to probe and press the Minister—I will not put it more strongly than that—to go further in affirming the sovereign role of Parliament described by A. V. Dicey. The power of Parliament has been drawn into question, particularly in respect of the Investigatory Powers Tribunal, as I said. The Supreme Court, in a perverse judgment, effectively set aside Parliament’s lawmaking choice in May 2019 in the landmark judgment of Privacy International v. Investigatory Powers Tribunal. Hon. Members will remember that the case was raised in the first oral evidence session by Professor Ekins, and addressed by him in his paper for Policy Exchange. I once again thank Policy Exchange for publishing that paper, which has added to our understanding of and insight into these matters.
In essence, the new clause, tabled in my name and that of my hon. Friend the Member for Ipswich, and supported by other Committee members—I say that with some timidity and hesitation, because I cannot presuppose that support until I have persuaded them by the power of my oratory; none the less, I am confident  that it has some sympathy of other Committee members—is an opportunity for the Government to do what the Attorney General recommended and advertised in her recent speech in Cambridge, in which she identified the problem I describe of the courts taking a more incursive role into the business of high politics than is their proper place to do. The new clause, in respect of the Regulation of Investigatory Powers Act 2000, attempts to do just that.
The new clause would reverse the Supreme Court’s judgment and reinstate the law that Parliament clearly made. Before the Privacy International case, the courts had taken section 67 of the 2000 Act to be a clear, unambiguous ouster clause that excludes the jurisdiction of the courts in relation to the Investigatory Powers Tribunal. For 19 years, there has been no possibility of judicial review. In recent court judgments, including others such as the Adams case and the Miller case, we have seen the creeping role of the courts into those areas, with judicial review being used as the mechanism to allow that mission creep. It is important that the Government recognise that—from what the Minister has said, I think they do—and take effective action to address it.
I suppose what I am saying is that the Bill could have been a bigger piece of legislation. As you will know from your long experience in the House, Mr Rosindell, new clauses are sometimes a way of encouraging the Government during the further consideration of the Bill to listen to the arguments that have been made during scrutiny and to allow it to do more than was originally intended. The alternative would be to bring in another Bill, but it is always difficult to secure time in the legislative programme. The likelihood of another Bill in the same subject area is small, so this may be our chance. It is a rare and special chance for the Minister to become something of a star, if I might put it that way, in the battle to affirm the constitutional place and historic role of Parliament in relation to the courts.
The then Lord Chancellor, my right hon. and learned Friend the Member for South Swindon (Robert Buckland), made a powerful critique of the Privacy International judgment and of the 2015 Evans judgment, which concerned the disclosure of the Prince of Wales’s letters, which was a similar case of the courts taking unusual—I would say exceptional—power with an undesirable outcome. In the Evans case, a Supreme Court majority effectively overturned part of the Freedom of Information Act 2000.
The constitutional problems with the Supreme Court’s reasoning in that case are set out in a previous Policy Exchange paper written by Professor Ekins and Professor Forsyth of the University of Cambridge. Their argument was strongly endorsed by Lord Hoffmann and Lord Brown, two of the country’s most senior judges, and by Lord Faulkes, who chaired the independent review of administrative law last year.
Speaking about that case, the then Lord Chancellor said:
“when enacting the provisions at issue in Privacy International and Evans Parliament did not believe that it was infringing the rule of law (and indeed the judges in the minority in both cases agreed). It was also perfectly clear, as the minority recognised,  what Parliament actually intended. Provided Parliament’s assessment was not wholly unreasonable, it does not appear to me to be right to frustrate that intention”.
That is a powerful critique. Even if Parliament had been wrong to enact section 67(8) of the Regulation of Investigatory Powers Act 2000, it was a decision for Parliament to make.
A fundamental issue is at stake here. We are answerable to the people and our legitimacy is derived from the people. Although it is important that an independent judiciary plays its part in our constitutional settlement, it is not a matter of reciprocity or mutuality; it is not about alternative sources of power. This place is the source of legitimate democratic power because we, as I say, draw that authority from the people. We speak for the people and are answerable to the people. That is the point. It is not right for that mission creep to allow others to exercise power, who are not directly accountable in the way that I have described.
The new clause focuses on the important Privacy International case, but it also speaks to those other wider and deeper matters. By accepting the new clause, as I am confident the Minister will with good grace and alacrity when he rises to speak, the Government will be doing a great service not only in their own interests, because the new clause is entirely in keeping with the essence of the legislation’s intention, but in recognising that the Bill provides a special, unusual, perhaps even a unique opportunity to right these wrongs.
Without wishing to delay the Committee further, I say to my colleagues on the Conservative Benches and, by the way, to those across the House, that the Bill has been debated in good spirit, and with appropriate care. I paid tribute in an earlier session to the hon. Member for Hammersmith, but I do not want to do so again, else we will start getting the reputation of being too friendly with each other. I do not want to give the impression that I am in the thrall of the hon. Gentleman. The Bill has been debated in the right spirit and in a sensible and positive way. To Opposition Members, I say that it is important for all Members of the House to recognise the authority of this place, as I have described, for that is our mission and purpose. I am disturbed by the increasing judicial activism that has led through series of cases—I could talk about the Miller case, and I referred briefly to the Adams case—which is changing the balance of our constitution from this place to elsewhere.
In summary, I was proud to take security legislation through the House that gave the Security Service and the police the powers that they need to protect us from those who seek to do us harm. We have put into place safeguards and protections in earlier security legislation and in the legislation that I took through myself. We are clear that there have to be those safeguards, and of course it is right that all the agencies on which we confer extensive powers are themselves accountable. But it is not right for the courts to frustrate the will of this House.
To that end, I am pleased and proud to propose the new clause in my name. Of course, needless to say, at this stage I will not say that I am going to push it to a vote; that would be quite wrong, because it would suggest that the Minister could just say anything. I do not want to let the Minister off the hook. He knows that I am a supportive and friendly member of the  Committee; but none the less, I am expecting him to at very least say that he is minded to consider these matters, or the full power of the Back-Bench Members of the Committee could be felt and heard, to the distress of my great friend who sits on the Front Bench next to the Minister, namely my hon. Friend the Member for North Cornwall. As I said to him last week, were that to happen, he would have a grey mark against him, next to my black mark.
I say to the Minister, persuade me otherwise, or agree at least to consider the matters addressed by the new clause because it is very much inspired by the message that he has broadcast to the Committee: the Government want to get things right in respect of the power of courts alongside the power of Parliament.

John Hayes: I rise to sort of correct the hon. Gentleman but not in an antagonistic way. He will understand that this new clause—and, indeed, the Bill—do not supersede section 67A of the Regulation of Investigatory Powers Act 2000, which does indeed say that the tribunal can be challenged on a point of law. Contrary to his argument, there remains in existing legislation an additional safeguard if the tribunal acts in a way that is contrary to proper legal practice, and a point of law is the ground for an appeal.

John Hayes: I am going to give the Committee the benefit of my further wisdom in a few moments, but on that particular issue, the point about the Investigatory Powers Tribunal is that it is a specialist court, and the intention of the House in establishing that court—the Minister made reference to the Regulation of Investigatory Powers Act 2000 and the Investigatory Powers Act 2016; the 2016 Act was the one that I took through the House, as he knows—was to indicate that had Parliament decided that the tribunal’s important work, which essentially gives authority as well as supervision to the security services, should not be questioned in an ordinary court. The Supreme Court countered Parliament’s will in that respect. That is why this is so significant. It draws into question whether the Supreme Court might do the same in respect of other primary legislation that has ouster clauses in it, which is why it is important to act now in respect of this Bill.

John Hayes: When I said the Minister could become a star, I should have said a brighter star, because he has already shone in his response, particularly his generous invitation to meet with and discuss these matters with his officials in his Department. I take his point, of course, about the characteristics of the Bill, the need to address Cart in particular, and its relationship to the backlog in the courts. However, the Bill is about principle as well as practice. There is a practical reason for introducing the Bill, but a principle underpins it, which he has articulated a number of times during our deliberations: it is not right that the court system should be gamed to frustrate the will of the House.
My hon. Friend the Member for Ipswich spoke about his constituents wanting to see the will of the House as a manifestation of their will being delivered. The disturbing rise in judicial activism and judge-made law raises fundamental questions of parliamentary sovereignty. Mr Rosindell, whether you are or are not convinced of that I do not know, as you are the impartial Chair in our affairs, but the witnesses who gave evidence to the Committee are certainly convinced. Professor Ekins said that the Privacy International case did constitute a “very serious attack” on some fundamental questions of the constitution. He stated:
“The rule of law requires respect for the law, which includes parliamentary sovereignty and the stability of statute”.
In oral evidence, Sir Stephen Laws said:
“If the courts are deciding judicial review decisions that set the rules for future hypothetical cases, they are usurping the legislative function.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 9-15.]
That is pretty damning criticism of Privacy International and other recent cases.
There is an argument that at that time there was a particular group of Supreme Court judges—I am hesitating so as to choose the right words—who took eccentric decisions, and that things have now returned to normal, but that is not good enough. As the Attorney General said in her recent speech,
“the mould has been broken.”
Precedent was set, and that is the problem with ouster clauses. As the hon. Member for Hammersmith will know, other Acts of Parliament, including the Intelligence   Services Act 1994, Security Service Act 1989 and the Police Act 1997, contain ouster clauses that could be challenged on the basis of the Privacy International case.

John Hayes: I agree. Indeed, when I proposed the Investigatory Powers Act 2016, to which the hon. Member for Hammersmith referred and which built on the Regulation of Investigatory Powers Act 2000, which Privacy International specifically dealt with, there was a genuine spirit of co-operation across the House. I worked closely with my then shadow, who went on to become Leader of the Opposition. I often say to him these days, “You learned your trade under me.” In fact, I think he said that to me, but we worked closely on those matters and it was detailed scrutiny, as my hon. Friend has just described, that led to that Bill becoming an Act.
Indeed, we undertook extensive pre-legislative scrutiny, and one of the people I appointed to that task is now Attorney General. The scrutiny, under Lord Murphy, looked at the Bill in some detail, as the hon. Member for Hammersmith suggested, and there were long debates in the House and in the other place before it became law. As I emphasised earlier, we were determined that there should be proper safeguards.
The essence of this, Mr Rosindell, is that in these difficult, delicate and challenging matters of security, Parliament has to legislate—I would not say regularly, but as often as necessary—to allow our security services and the forces of law to stay ahead of those who wish to do us harm. The problem is that the capabilities of malevolent elements are dynamic, so the legal powers of those with the mission to keep us safe must match that dynamism. That is always challenging to Parliament, because there is a balance to be struck between the maintenance of law and the protection of liberty. That debate is the context for many of these considerations. It is not the place of the courts of make up the law as they go along, but that is exactly what has occurred.
I referred to the Attorney General earlier. She could not have put that case more plainly in the speech she made a few weeks ago at Cambridge University:
“The Supreme Court’s judgment in the case of Privacy International was also profoundly troubling for a number of reasons. A decision by Parliament to limit the judicial review jurisdiction of the Courts should only be taken after the most serious consideration by the legislature. And there may well be circumstances where Parliament does consider that to be appropriate. In such circumstances, the Court should be very slow to deprive legislation of its proper meaning”.
That is essentially what the Court did in the case of Privacy International. It deprived legislation of its proper meaning. The most generous way to describe it is that the Court interpreted the decision made by Parliament in what I regard as a perverse way, and, in the words of the Attorney General, a “profoundly troubling” way.
The new clause, which the Minister will know is in scope—it is not for me to gauge that; our expert Clerks judged it, so there is no doubt about whether it is appropriate to add it to the Bill—would address that concern about creeping judge-made law in what is, as my hon. Friend the Member for Ipswich said, a very sensitive area. I am grateful to the Minister, who made a generous offer and rightly drew attention to his helpful letter on issues raised by me and other hon. Members in our earlier consideration. I am particularly grateful to him for fully taking into account the case that I made on behalf of disadvantaged court users; his letter is most welcome in that respect. With the offer that he made of further discussion, the open-mindedness that he has shown and his clear understanding of why the new clause was tabled, I will—hesitatingly and to some degree reluctantly—beg to ask leave to withdraw the motion.

John Hayes: I beg to move, That the clause be read a Second time.
This new clause deals with evidence. Again, it has been deemed by the Clerks to be in scope and it would therefore be an appropriate addition to the Bill. It is very much in the spirit of my previous remarks.
It is important to understand that the new clause has two parts. Subsection (1) aims to limit the extent to which judicial review proceedings involve the testing of evidence and a resolution disputing questions of fact. The traditional view is that judicial review proceedings are an inappropriate forum in which to solicit or test evidence because it is a supervisory jurisdiction that should focus on questions of law rather than questions of fact. That was its well-understood basis for a considerable period of time.
As well as the changing character of the courts’ role in relation to the legislature, there has also been a change in the application of judicial review in respect of evidence. The courts ought to be focusing on the legality of decisions taken and whether it stands up to appropriate levels of scrutiny. That is the business of a judicial review. Allowing disclosure and cross-examination could lead to litigation becoming an exercise whereby new material is introduced on a fishing expedition. Rather than testing the proper exercise of powers, as judicial review is supposed to do, it could lead to the whole character of a case being revisited and perhaps the introduction of new evidence that was not pertinent to the original decision or even known to the original decision makers. That is not its role, and the Bill is a perfect opportunity to address that distortion of its original character and purpose.
As the Minister has told us a number of times, the Bill aims to tighten the judicial review process and essentially re-establish its pertinence, salience and purpose. The new clause would do exactly that. The change in practice has arisen partly because of overarching legislation such as the Human Rights Act 1998. There is a case for the wholehearted reform of the Human Rights Act, or its abolition altogether. However, this is not the place to have that debate—although, I understand that the Lord Chancellor has spoken on those matters and is considering addressing them in the House in due course. The point to be made here and now is that the Act has spilled over into judicial review decisions. It is clear that in recent years judicial review using the Act has become an opportunity to have a much wider debate and discussion than this legal mechanism originally intended—the original purpose was to check the correctness of decision making.
Subsection (2) of new clause 5 addresses the problem that arises when judicial proceedings are used to force public bodies to disclose information even in contexts where the public body argues that the law forbids judicial review. If a matter is non-justiciable, or if legislation ousts judicial review, the public body will not be compelled to disclose evidence simply because litigation is threatened or initiated. The clause will require courts to decide whether the matter is justiciable or whether legislation permits judicial review before the public body will have any duty to disclose information relevant to litigation.
New clause 5 would not stop any litigation that should proceed from proceeding. Those are cases in which the matter is justiciable and no ouster clause forbids judicial review. It would require courts to make decisions in the right order, avoiding the risk that was apparent in the Supreme Court’s Prorogation judgment: that the courts are led astray by the evidence before them rather than focusing squarely on the question of law that they should decide. The Miller judgment was exceptional and, in my judgment, perverse. It is fundamental to our constitution that the appointment of Ministers, the Dissolution of Parliament and, by extension, Prorogation are matters for the Executive and not the courts.
One might argue that when the Supreme Court was established—it was a sorry day, Mr Rosindell, but you will not allow me to debate that at great length here, and nor will I—this was almost bound to happen: that the very existence of the Supreme Court would encourage those who sit on it to extend their powers into matters of what the Attorney General called “high politics”.  That apart, the Prorogation judgment was a naked example of the courts making a constitutional decision in a way that is appropriate only for this elected House, our Parliament—both because we are answerable to the people and because, as I said earlier, our legitimacy derives from the people. This is about proper process, but it touches on the broader issue of the respective roles of the judiciary, the Executive and the legislature—the separation of powers to which I referred in an earlier sitting.
The Minister will again, I hope, recognise that the new clause is very much in the spirit that he set out when he made it clear that the Government want judicial review to be what it was always intended to be and has been for most of its life, rather than something very different, which is what it has become. With that in mind, I hope that he will give the new clause, which is significant but not in any way out of keeping with the Bill’s intent, a fair wind. Rather than, as last time, offering me a meeting—although I was very grateful for that meeting—I hope that this time he will say that the Government accept it, and will at a later stage introduce a Government amendment.
I do not necessarily expect the Minister to accept the new clause as drafted; he will want his draftsmen to take a close look at it, and often parliamentary draftsmen are able to a better job than I ever could, even with the assistance of my cerebral hon. Friend the Member for Ipswich. The Minister may want to look at the detail of this, but I hope that he will at the very least give it wholehearted consideration, perhaps with a view to the Government coming back with their own thoughts on how we might look at the issue of evidence, and how it is properly used in judicial review.

John Hayes: That is true, but I see the Minister as something between the two. He is more of a jalfrezi—spicy, lively and deeply satisfying, in terms of his response to my new clauses at least.
It is worth drawing attention to the remarks of Lord Sumption, who of course commented on exactly these matters in his Reith lecture. Jonathan Sumption is the judge who, perhaps more than any other, set out the proper functions of the courts in relation to Parliament in his Reith lecture, when he said:
“It is the proper function of the courts to stop Government exceeding or abusing their legal powers.”
That is exactly the role of judicial review, by the way. He continued:
“Allowing judges to circumvent parliamentary legislation, or review the merits of policy decisions for which Ministers are answerable to Parliament, raises quite different issues. It confers vast discretionary powers on a body of people who are not constitutionally accountable for what they do. It also undermines the single biggest advantage of the political process, which is to accommodate the divergent interests and opinions of citizens.”
He went on to say in that lecture that it was about developing the right kind of political culture. It is appropriate that the political culture that underpins our deliberations in this place is a means by which views can be mitigated and ameliorated, where necessary, in a way that courts cannot do because of their character and function. I remain of Jonathan Sumption’s view that much needs to be done to put right what the courts have got wrong in recent years, and I stand alongside the Attorney General in her determination to do that.
Although I understand that the Bill is not sufficiently wide-ranging to do all that I want it to do, there is scope for the Government to do more in respect of the new clause and new clause 3. I am grateful that the Minister has implicitly acknowledged that by welcoming further discussion.
On the new clause that stands in my name and that of my hon. Friend the Member for Ipswich—I will just say, as the Minister did, that my hon. Friend is an outstanding Member of Parliament and the people of Ipswich should be proud to have him—I beg to ask leave to withdraw the motion.